Brinsfield v. Austin

39 Ala. 227

• Court: Supreme Court of Alabama
• Decided: June 15, 1863
• Status: Published

Opinion

R. W. WALKER, J.

The record discloses two defects, each of which / is fatal to the judgment in this case. The proceeding was by attachment against a non-resident, and it does not appear that publication was made as required by the statute in such cases. — Code, § 2510 ; Dow v. Whitman & Owsley, 36 Ala. 604. The attachment was for a sum over fifty dollars, and was levied, not by the sheriff, but by a person specially appointed for that purpose by the justice issuing it. The justice had no authority to make such appointment. The power conferred upon justices of the peace, by section 712 of the Code, to appoint a person, “in cases of emergency,” to act in the place of a constable, “in the execution of all process, except the collection of executions,” extends only to such process as constables may lawfully execute. A constable has no authority, in this State, to levy an original attachment, issued for a sum exceeding fifty dollars, and returnable to the circuit court; and hence the levy in this case was void. — See Martin v. Dollar, 32 Ala. 422.

Judgment reversed, and cause remanded.